Ohio’s state legislature recently passed a bill that criminalised the abortion of a fetus at six weeks, with no exception for rape or incest. So, how can this be legal given the fact that the landmark ruling in the court case of Roe v Wade from 1973, which gave American women the legal right to an abortion, has not been overturned?
The world ends not with a bang but with a whimper – to paraphrase American poet TS Eliot. As the nation’s highest court shifts right and, arguably, become more politicised than ever, legal activists and concerned citizens should be particularly attentive to what impending test cases are likely to reach the United States Supreme Court.
Given this new judicial landscape, a woman’s right to choose and, with that, landmark case Roe v Wade is on many people’s minds. However, the reversal of Roe – the bang – may not be the most immediate threat to women’s bodily autonomy. Rather, the undermining of the existing regime of abortion access laws by states – the whimper – is much more imminent, harmful, and in need of action, as in the case of Ohio.
The ability for a woman to have unrestricted access to safe, legal abortion care in the US is integral to the right to choose outlined in Roe v Wade. “Before Roe, women faced unwanted pregnancies and sought ways to end them. Women who had means could sometimes access a legal, or at least safe, abortion, but poor women – especially poor, young, women of colour – had few options beyond carrying an unwanted pregnancy to term or undergoing a dangerous procedure,” said Dr Abigail Cutler, an obstetrician-gynecologist at the Yale School of Medicine, in a conversation with the authors. “Abortion has always, and will always, be common. The difference is that when abortion is illegal, women die.” This is not unchartered territory. There is an abundance of data that attests to what happens to women’s health when access is diminished. For instance, when states restricted Medicaid coverage of abortion services, women faced a 16 percent increased risk of severe maternal conditions such as heart attacks, acute renal failure, eclampsia, sepsis, and shock.
Further, studies have found that between six percent and 22 percent of women seeking abortions report intimate partner violence and some cite it as a reason for terminating pregnancies. Study participants described “not wanting to expose children to violence and believing that having the baby will tether them to an abusive partner.” Understanding the evolution of abortion regulations and subsequent court challenges over the past 45 years is crucial to realising the enormity of the threat of the Supreme Court’s new composition.
Subsequent to the landmark Roe decision, conservative states and even some liberal ones tried to subvert this right by creating regulations that restrict abortion clinics (requiring them to be affiliated with a hospital located close by), abortion providers (mandating that they have to admit privileges at a nearby medical centre), or women (requiring that they notify their husbands). In effect, these provisions serve as roadblocks to providing access to abortion care services for women.
In the decades following Roe v Wade many of these new regulations on women and abortion providers were challenged in court. Planned Parenthood of Southeastern Pennsylvania challenged new stipulations to Pennsylvania’s abortion control law in 1988 and 1989. The provisions in question required women, if married, to notify their husbands and, if under 18, to obtain parental consent and wait 24 hours before having the procedure done.
In a 5-4 decision, the Supreme Court reaffirmed Roe and imposed the new “undue burden” standard, which forces the question of whether a state abortion regulation imposes a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”